Appleton pays Post-Crescent in open records settlement

May 25, 2012

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| By Jessie Van Berkel

Post-Crescent staff writer

APPLETON — The city turned over documents and paid The Post-Crescent more than $4,000 in a settlement reached after the news organization sued over the costs demanded for documents sought under state open records laws.

An Outagamie County judge dismissed the civil lawsuit The Post-Crescent filed against the Appleton Police and Fire Commission in February after the two sides reached a settlement that included access to the records the newspaper sought.

Judge Michael Gage dismissed the case May 11 without costs to either party beyond lawyer’s fees. The settlement required the city to pay $4,117.50 for the newspaper’s attorney fees and stated the case doesn’t set a precedent for future litigation because a compromise was reached.

The Post-Crescent asked the Police and Fire Commission for copies of its minutes and agendas from 2008 to Jan. 10, 2012, and appointments and reappointments of police and fire commissioners from 1990 to that time. Commission Secretary Harvey Samson told The Post-Crescent in a written response in January that it would take between two and four hours to locate the documents.

“Since I am unable to do my usual work when I am searching for records, I believe that the ‘actual, necessary and direct cost of location’ is my usual hourly rate of $225.00 per hour,” wrote Samson, who works as a private practice attorney. “In addition, the ‘actual, necessary and direct cost’ of providing copies of the records requested will be $.25 per page plus my assistant’s usual hourly rate.”

The newspaper sued the commission and Samson after he told The Post-Crescent the records request would cost about $1,000. The Post-Crescent claimed the commission and Samson broke state open records law by demanding an excessive fee — a move “intended to discourage public oversight of its operations,” according to the lawsuit.

“We settled the case after they voluntarily produced the records,” said The Post-Crescent’s attorney, Bob Dreps.

“It’s a fair settlement,” Mayor Tim Hanna said, noting the documents are open records and “it wasn’t a case of ‘you can’t have the records,’ it was the cost.”

Hanna chose to hire an outside attorney from the Milwaukee firm Fuchs & Boyle to handle the case instead of asking City Attorney James Walsh to handle the matter.

The outside attorney cost $624 and was hired to remove the appearance of bias and keep the case “at arm’s length,” Hanna said.

Compared to other legal action the city has faced, like the Fox River PCB cleanup case — which is costing millions — the cost of the newspaper’s lawsuit was not financially significant, Hanna said.